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Friday, November 30, 2012

Prop. 8: U.S. Supreme Court Considers Whether to Hear Gay Marriage Case (Update)

Posted By on Fri, Nov 30, 2012 at 12:48 PM

The official Interpreters of the Constitution.
  • The official Interpreters of the Constitution.

(Update 12:40 p.m.): No action on gay marriage from the court today. The justices did not pick up any of those cases at their meeting this morning, SCOTUSblog reported. So, for all those who are hosting a Supreme Court Gay Marriage Case Announcement party, you'll need more ice and maybe some sleeping bags.

(Original story 7 a.m.): Today, the U.S. Supreme Court will decide whether or not it will step into the gay marriage debate. As they do before each session, the nine justices will be considering which cases to take on.

This year's batch of possibilities includes California's Proposition 8, as well as others challenging the federal Defense of Marriage Act, the federal law defining marriage as between a man and a woman.

Gay marriage is the most divisive social issue in America that has not been legally settled through Supreme Court precedent. The justices' deliberations over the coming days could change that.

See also: A More Perfect Union: Prop.8 May Lead to Gay-Marriage Rights

It would be somewhat fitting if gay marriage's legal future in America hinged on the high court's opinion of Prop. 8. The 2008 ballot measure, which passed with 52 percent of the vote, banned gay marriage in California, a thudding body shot to the homestate of Harvey Milk and the Black Cat.

In the years since, nine states legalized same-sex marriage, the president declared his support for the policy, sports teams filmed "It Gets Better" videos, a hip-hop star got much love upon coming out, two NBA players apologized for using the F-word during a game, and the U.S. Senate gained its first openly gay member.

One other thing: In February, the Ninth Circuit Court of Appeals ruled Prop. 8 unconstitutional because it "serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California and to officially reclassify their relationship and families as inferior to those of opposite-sex couples."

And Prop. 8 supporters appealed to the Supreme Court. So now gay marriage is in limbo in California. The state has hit the pause button on gay marriage until the Supreme Court decides whether or not to hear the case.

If SCOTUS does hear the case, gay marriage faces multiple possible paths. As KQED's Scott Shafer broke it down:

[The Supreme Court] has several options and what the justices do depends on how far into it they want to wade.

First, they could take up the case on its merits -- and separately from the DOMA cases. Since the Ninth Circuit narrowed Judge Vaughn Walker's decision considerably, it could be decided with limited scope by the high court -- applying only to California without taking up the question of whether marriage is a fundamental right and should be available across the country. They could also combine the Prop. 8 question with any or all of the DOMA cases.

Alternatively, the justices could dodge the issue altogether by saying proponents of Prop. 8 lack legal standing to challenge the ruling. Or they could decline to take it up because it presents no legal conflict with earlier rulings from either district courts or the U.S. Supreme Court. Either of those two options would allow the lower court ruling to stand and same sex marriages would resume in California very shortly, as soon as next week.

Among the seven same-sex marriage cases the Supreme Court could take up, the Prop. 8 case is the only one that concerns whether or not gay people have the right to marry. Two cases specifically deal with benefit rights for same-sex partners. Five cases challenge the constitutionality of DOMA.

For most of these cases, including Prop. 8, the Circuit Court rulings were favorable to gay rights supporters. Those rulings would hold if SCOTUS doesn't pick up any of the cases.

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Albert Samaha


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